The Fifth Circuit enforced an NLRB order finding that In-N-Out Burger violated Section 8(a)(1) of the NLRA when it barred employees at an Austin, Texas restaurant from wearing buttons supporting the “Fight for $15″ movement. The company could not overcome the presumption that blanket bans on such insignia are unlawful under the Act, failing to convince the court of appeals that public image considerations or food safety concerns constituted “special circumstances” justifying the prohibition (In-N-Out Burger, Inc. v NLRB, July 6, 2018, Graves, J., Jr.).

In-N-Out Burger has a detailed employee appearance and uniform code. It maintains a rule in its employee handbook that states: “Wearing any type of pin or stickers is not permitted.” When an In-N-Out employee asked whether he could wear a “Fight for $15″ button on his uniform in solidarity with the nationwide movement (which presses for a $15 per hour minimum wage, among other protections for low-wage workers), a supervisor told him the button was not part of the uniform. Another employee had already donned the quarter-size button, which features a “$15″ superimposed on an image of a raised fist, a day earlier. The supervisor now told her to remove it—invoking the company appearance rule. Then a third employee put the button on that same day. He was called into the store manager’s office and told to remove it, citing the uniform policy.

The Board held that the employer violated Section 8(a)(1) by maintaining and enforcing the work rule. Starting from the principle that bans on such insignia are presumptively unlawful under the NLRA, the appeals court considered, but rejected, the company’s assertion, in its petition for review, that its interest in maintaining a unique public image and its concern with ensuring food safety constituted “special circumstances” sufficient to justify the rule.

Public image not undermined. First, In-N-Out contended that the button restriction was necessary to uphold its public image, which depends on uniformity of customer experience across the burger chain’s 300 restaurants nationwide. It explained that employee uniforms “with ‘a limited number of specific identified elements,’ to which nothing can be added,” was among the “core components” of its “consistent image,” along with a “sparking clean environment” and outstanding customer service. All In-N-Out restaurants are company-owned, not franchised, the employer noted, also citing its ownership structure as part of its public image defense. But the Board found most of these elements “irrelevant” to the special circumstances defense, and the Fifth Circuit, pointing out that the public image exception is an exceedingly narrow one, saw no reason to disturb this finding.

Undermining the company’s case was the fact that, although it claims to strictly enforce its appearance code, In-N-Out requires employees to wear company-issued buttons twice a year: a “Merry Christmas” button in December and, in April, a button soliciting donations to a nonprofit organization launched by the company’s owners. In-N-Out argued that these buttons were simply “a part of the uniform,” but the appeals court was not convinced. “If the employee uniform—which In-N-Out describes as an integral component of its overall public image—changes several times each year, then either the company’s interest in maintaining a ‘consistent’ public image is not as great as it suggests, or, alternatively, the uniform does not play as critical a role in maintaining that public image as In-N-Out claims,” the court reasoned.

That was particularly true given that the mandatory buttons were far more conspicuous than the Fight for $15 buttons, as the Board observed. If the larger, company-sanctioned buttons didn’t interfere with In-N-Out’s public image, then the less-obtrusive Fight for $15 buttons could hardly do so. To support a special circumstances defense, an employer must present concrete (not merely speculative) evidence of the negative effects it would suffer absent its blanket ban on such insignia. In-N-Out failed to satisfy this burden, the court held, readily distinguishing case law cited by the employer in support of its defense.

No risk to food safety. But the Fight for $15 buttons compromise food safety, the employer next argued. The lightweight buttons could fall into a customer’s food, which could well go unnoticed given how small they are—unlike the company-issued buttons, which were much larger and which had “far sturdier” pin mechanisms. But the blanket ban on all but its own mandated buttons, without regard to their safety, was not narrowly tailored to address legitimate food safety concerns. In-N-Out made no apparent attempt to examine the Fight for $15 buttons to see whether they were in fact unsafe. Notably, however, the ALJ did—and found no discernible difference, safety-wise, between the Fight for $15 buttons and the company-issued buttons.

As such, the Board reasonably rejected the employer’s post hoc plea that safety considerations warranted the button restriction, and properly rejected the “special circumstances” defense in its entirety. Therefore, the Fifth Circuit refused to aside the NLRB order, and granted the Board’s cross-application for enforcement.

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